The opinion of the court was delivered by: Wilkerson, Magistrate Judge.
Now pending before the Court is a Motion for Summary Judgment filed by Defendant, the Illinois Department of Transportation on July 23, 2010 (Doc. 38). For the reasons set forth below, the motion is GRANTED.
Plaintiff Kevin Gettis, who is African-American, was employed by Defendant Illinois Department of Transportation ("IDOT") from February 9, 2004, to May 14, 2008, when his employment was terminated. He filed this action in Illinois state court and Defendant removed it to this court on August 20, 2009 (Doc. 2). In his amended complaint filed May 20, 2010 (Doc. 28), Plaintiff alleged that Defendant IDOT unlawfully discriminated against him on the basis of his race and retaliated against him for exercising his civil rights in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e, et seq.), 42 U.S.C. § 1983, and the Illinois Human Rights Act 775 ILCS 5/1-109, et seq.
Plaintiff was hired by IDOT in 2004 as a Local Agency Liaison, a position classified as a Technical Manager V (Def. Exh. 1). As a Technical Manager V, Plaintiff was exempt from the Personnel Code and could be terminated without cause (Def. Exh. 1; Def. Exh. 2, ¶¶ 3, 6-8). Kyle Anderson, then Assistant to the Chief of Operations, supervised Plaintiff in the Local Agency Liaison position (Def. Exh. 24, Anderson Affidavit, ¶ 5). On May 18, 2004, Plaintiff received a 3-month-probationary performance evaluation. The report indicated that Plaintiff's performance was acceptable and that he accomplished his objectives (Pl. Exh. C). On January 25, 2007, Plaintiff received an annual performance evaluation signed by Kyle Anderson. The evaluation indicated Plaintiff's performance was "outstanding in all phases of the position" and his "[a]chievements and contributions greatly exceed standards, expectations, and requirements" (Pl. Exh. B).
In June 2007, Plaintiff began serving as Acting Urban Planning Chief for District 8, a position formerly held by James Stack (Def. Exh. 3, Gettis Depo. pp. 25-26). Plaintiff was not officially promoted to the job of Urban Planning Chief, but assumed the duties on a trial basis (Def. Exh. 4, Stack Affidavit, ¶ 5). He remained classified as a Local Agency Liaison (Def. Exh. 24, ¶ 7). Thus, on paper, Kyle Anderson remained Plaintiff's supervisor, but in practice he reported to James Stack, who supervised and trained Plaintiff in the Acting Urban Planning Chief position (Def. Exh. 24, ¶ 8). While acting as Urban Planning Chief, Plaintiff was not assigned to work in James Stack's former office, but in a cubicle in the Land Acquisition area. Plaintiff was aware of the work station arrangements prior to accepting the position (Def. Exh. 4, ¶¶ 8-12, 15-16; Def. Exh. 24, ¶¶ 18-19).
Sometime in 2007, Elbert Simon, IDOT Bureau Chief of Civil Rights, and long-time friend of Plaintiff, was in the District 8 office on other business (Pl. Exh. A, Simon Depo., p. 16).
He saw Plaintiff at that time. On October 16, 2007, Plaintiff sent an e-mail to Simon asking for his advice and asking him to call Plaintiff (Pl. Exh. E). On October 19, 2007, Plaintiff sent Simon another e-mail discussing Plaintiff's perceived "disrespect" in his job. He stated, "I do believe something is amiss in the office because of your visit" (Pl. Exh. F). Elbert Simon testified in deposition that other African-American IDOT employees informed him that they did not believe Plaintiff was being given the same "resources and opportunities" as his white predecessor (Pl. Exh. A, pp. 16-19). Plaintiff testified in deposition that Mike Myler told him that Kyle Anderson said he was "pissed" that Elbert Simon was "around here asking questions" (Def. Exh. 3, p. 60).
On November 29, 2007, Kyle Anderson and James Stack met with Plaintiff in a Documented Verbal Counseling session (Def. Exh. 4, Exhibit B to Stack Affidavit). Plaintiff was counseled regarding his accountability for completing leave requests and time sheets, abuse of sick leave, absenteeism, failure to report to work on days when James Stack was available to work with him, and failure to attend an annual meeting of the East West Gateway Council of Governments without notice to his supervisors (Def. Exh. 4, Exh. B).*fn1 At the counseling session, James Stack informed Plaintiff that going forward he would be required to submit weekly itineraries consisting of a to-do list, scheduled meetings, and progress on ongoing projects. Plaintiff was also provided with a list of major duties assigned to the position of Urban Planning Chief, which included the development of the Transportation Improvement Program ("TIP") and a long range plan for District 8 (Def. Exh. 4, Exh. B).
In December of 2007, Mary Lamie, IDOT Deputy Director of Highways and Regional Engineer, met with Clayton Harris, IDOT Chief of Staff, regarding Plaintiff's job performance, generally, and specifically regarding disrespectful, defensive, and belligerent e-mails Harris had received from Plaintiff (Def. Exh. 14, Lamie Affidavit, ¶ 11). Harris reminded Lamie that because Plaintiff was in a "double-exempt" position, IDOT did not need a reason to terminate his employment. Lamie did not support Plaintiff's termination at that time because she knew Plaintiff had received a documented counseling and wanted to give Plaintiff a chance to improve his job performance (Def. Exh. 14, ¶¶ 12-14).
In January of 2008, Plaintiff called in sick three days in a row. From January 1, 2008, to March 19, 2008, Plaintiff used 45 hours of sick time, 17.50 hours of vacation time, and 22 hours of personal time. Further, Plaintiff called in late on February 22, 2008. (Def. Exh. 16; Exh. 17.)
In early 2008, Kyle Anderson completed a portion of Plaintiff's annual evaluation for the prior year. He was unable to complete the evaluation, however, because in the position of acting Urban Planning Chief, Plaintiff reported to James Stack. As late as April 2008, Anderson was awaiting direction from District 8 to complete Plaintiff's evaluation (Def. Exh. 24, ¶¶ 41-45; Exh. C to Anderson Affidavit).
On February 29, 2008, James Stack and Kyle Anderson sent a memorandum advising Mary Lamie that they did not recommend that Plaintiff be permanently promoted to the position of Urban Planning Chief due to his poor work performance, poor work habits, lack of credibility, and need for "constant supervision." (Def. Exh. 4, ¶¶ 59-60; Def. Exh. 4, Exh. D; Def. Exh. 24, ¶¶ 38-39). When Plaintiff's job performance did not improve, Lamie determined that Plaintiff would not "be a good fit" for the permanent position (Def. Exh. 14, ¶ 15).
In March 2008, Mary Lamie was informed by Christine Reed, Director of Highways, and the Governor's office that Plaintiff would be terminated. She forwarded this information via e-mail to Kyle Anderson on March 24, 2008 ...